Can gross negligence constitute gross misconduct?

This was considered by the Court of Appeal in the case of Adesokan v Sainsbury’s Supermarkets Ltd [2017] EWCA Civ 22.

Introduction

Gross misconduct is deemed to be conduct so serious so as to justify the summary dismissal of an employee. Examples of gross misconduct include theft, fraud, physical violence or a serious breach of health and safety regulations.

Background

The claimant was a Regional Operations Manager for Sainsbury’s (the respondent), one of the more senior posts within the company.

The respondent became aware that the claimant had undermined the respondent’s ‘Talkback Procedure’, a consultation exercise with the aim of ensuring staff were engaged, motivated and took pride in their work. The HR Manager had issued an email in which he had deliberately attempted to manipulate scores in the Talkback Procedure. The claimant was aware of this email and did not take any action to rectify the situation.

The claimant was invited to a disciplinary hearing and it was decided that the inaction of the claimant demonstrated gross negligence which was tantamount to gross misconduct. The claimant was summarily dismissed and subsequently brought a claim for wrongful dismissal, i.e. that the respondent was in breach of contract by dismissing the claimant.

Decision

The High Court held that there was no breach of contract as the claimant’s negligence, although not deliberate, was so serious that it resulted in a ‘loss of trust and confidence’ on the part of the respondent.

The claimant appealed on the basis that his conduct was not capable, as a matter of law, of amounting to gross misconduct. The Court of Appeal heard submissions that it was too harsh to summarily dismiss an employee with a long period of unblemished service for a single act of negligent wrongdoing. However, the Court of Appeal dismissed the appeal. Given the significance placed on the Talkback Procedure by the respondent, the judge was entitled to find the claimant’s negligence constituted gross misconduct because it had the effect of undermining the trust and confidence in the employment relationship.

Commentary

This case does not set a precedent that any failure to act will amount to gross misconduct. Rather, it reiterates that each case will turn on the specific facts of that case. In this instance, the claimant was in a senior position and the failure related to a very serious breach of an important procedure. In this context, the inaction amounted to gross negligence and the company was entitled to terminate the employment summarily. Employers should include in a disciplinary policy that acts of gross negligence may also constitute gross misconduct.